Terms of sale and delivery
These general terms of sale and delivery (the “General Terms”) shall apply to any and all deliveries of goods from Really ApS, Skudehavnsvej 1, 2150 Nordhavn, Denmark, ("Seller") to all Buyers (the "Buyer").
1. Contractual basis
1.1 Seller’s deliveries are covered by the Danish Sale of Goods Act together with the specifications and exemptions stated below. Thus, Seller does not accept any terms of sale stipulated by the Buyer before or after the issue of the order confirmation, unless confirmed in writing by Seller.
1.2 An offer quoted by Seller is not binding until Seller has received the Buyer’s acceptance and has issued an order confirmation. Any offer made by Seller is valid for 30 days from the date of the offer. The order confirmation and these General Terms constitute the purchase agreement entered into between the Buyer and the Seller.
1.3 In the event of any discrepancy between the Buyer's order and the order confirmation issued by the Seller, the Buyer must send written notification hereof to the Seller within 3 days from receipt of the offer, as the order confirmation will otherwise be binding on the Buyer.
1.4 Any offers from the Seller to the Buyer and the Seller's acceptance of orders from the Buyer are made under the reservation that the goods in question may not be in stock or that the Seller due to constraints in production capacity or similar reasons may not be able to deliver such goods in accordance with the offer or order. The Seller is therefore entitled to withdraw or make modifications to an offer or acceptance of order and to the estimated time of delivery. Such withdrawal or modifications do not entitle the Buyer to make any claim against the Seller.
1.5 All prices quoted by the Seller are based on these General Terms and reflect the limited liabilities of the Seller. Where a Buyer wants to deal with Seller on other terms than these general terms, this may be agreed separately and Seller may make a revised quotation.
2. Purchase price
2.1 The purchase price is quoted in the order confirmation exclusive of VAT and other indirect taxes. Where the purchase price is not mentioned in the order confirmation, the price applicable on the date of delivery applies. Seller may adjust the purchase price if overall manufacturing costs increase due to unforeseen circumstances such as an increase in the price of raw materials, direct and indirect taxes, etc.
3.1 When the terms and conditions of delivery have been agreed, they must be construed in accordance with the INCOTERMS applicable at the time of purchase. Unless otherwise agreed, delivery is Ex Works. Seller handles shipping and determines the method of dispatch. Dispatch is made at the Buyer’s expense, risk, etc. Other terms and conditions must be agreed separately.
4. Delivery Times
4.1 The Seller assumes no responsibility for any missing, incomplete or delayed deliveries due in whole or in part to circumstances beyond the Seller's control, such as the breakdown of production equipment, limited capacity, fire, strikes, refusal to obey instructions, lockouts and other forms of force majeure or incomplete or delayed deliveries from sub-contractors or similar parties.
4.2 The Seller is entitled to make partial deliveries.
4.3 Delivery until 5 working days after the estimated delivery date shall constitute delivery on time.
5. Duty of complaint and examination and Seller’s liability
5.1 The Buyer is obliged to examine the goods carefully immediately upon receipt and to report and describe any product defect which it has or ought to have noted without undue delay and no later than 5 days from receipt. The Buyer is not entitled to later invoke any defects which would have been revealed by such examination.
5.2 If any of the delivered goods are defect, the Seller is entitled to conduct any reasonable remedy action or replacement delivery.
5.3 The Seller shall never be liable towards the Buyer for the Buyer's indirect loss or other consequential damage due to defective goods. The Seller's liability towards the Buyer shall in any case be limited to the invoiced purchase price relating to the goods from which the Buyer's claim arises.
6.1 Unless otherwise stated, the Seller’s terms of payment are 30 days from the date of the invoice. In the event of late payment, i.e. later than the due date of the invoice, default interest is added subject to the provisions of the Danish Interest Rate Act, i.e. at a monthly rate equal to Danmark Nationalbank’s reference rate of interest + 1%. The Seller is entitled to terminate any outstanding or pending orders and deliveries to the Buyer, if the Buyer is in arrears with any payment.
6.2 Upon the Seller's request the Buyer is obliged to provide a bank guarantee, Letter of Credit or similar means of financial security instrument as decided by the Seller. The Seller is also entitled to demand that the Buyer pays all orders in advance or that payment must be made upon delivery.
6.3 In the event of the Buyer being in arrears with any payment, the Buyer is considered to be in breach of any and all obligations towards the Seller and the Seller is entitled to terminate any orders, agreements and other business relationships with the Buyer, with immediate effect. In such situation any outstanding amount in favour of the Seller falls due for payment without further notice.
6.4 The Buyer is not entitled to set-off any invoiced amount against any amount due or to become due from the Seller to the Buyer, without the Seller's prior written acceptance.
7. Conditional sale
7.1 The goods supplied shall remain the property of the Seller until full payment has been registered with the Seller. The Buyer is not entitled to resell the goods until full payment has been registered with the Seller. If the Seller consents in writing to the Buyer, a written consent to resell the goods before full payment has been registered with the Seller, the Buyer is obliged to conduct a regular control of his stock and to keep a separate tally of the goods covered by the Seller's retention of title.
8. Product consistency
8.1 The goods are based on End-of Life natural fibres and therefore the goods will have slight colour changes from batch to batch as well as from board to board. Exposed to bright sunlight the material can experience slightly changes colours. Smaller corrections in fibres might occur due to the history of the fibre. Due to the usages of a high amount of natural fibres the board thickness can vary up to 0,5 mm. Such variations shall not entitle the Buyer to any claim against Seller.
8.2 Seller guarantees that the goods meet the specifications set out in the order confirmation subject, however, to the level of tolerance deemed acceptable by the industry and the variations stated above in clause 8.1. The Seller does not guarantee product suitability for specific purposes unless specifically requested by the Buyer and if this is specifically mentioned in the order confirmation.
9. Adviser responsibility
9.1 Advice and recommendations provided by Seller on the specific suitability of the goods is indicative only. As the Buyer’s application of the products is beyond the control of Seller, Seller is not liable for the Buyer’s actual use of the goods. Seller is not liable for any damage or loss arising out of the Buyer’s incorrect or unusual application of the goods.
10.1 Any reference to Seller and its goods for the Buyer’s own promotional purposes is subject to the written permission of Seller.
10.2 All marketing material remains the property of the Seller and may only be used in association with the Seller’s goods. The Seller reserves the right to demand that all advertisements and other marketing measures which include the Seller's goods, marketing material or intellectual property rights or which in any other way has a relation to the Seller are approved in writing by the Seller prior to execution.
11. Defects and delays
11.1 Corresponding to our quality standards and technical instructions, Seller strives to supply first quality goods on time and to all its Buyers, according to industrial standards.
11.2 Seller’s defect liability shall only cover goods that are:
• Used under normal conditions at the workplace or in private areas, i.e. as a rule for maximum 16 hours a day;
• Used in accordance with its properties, i.e. in accordance with the product data sheet specification;
• Regular and carefully cleaned in accordance with the Really maintenance recommendations; and
• Are further processed according to recommendations.
11.3 It is specifically agreed that the Seller’s liability does not cover:
• Any exposure of the goods to sharp devises
• Any exposure of the goods to acid and other harsh chemicals
• Any damage occurred from mounting the material improperly and unsupported according to standards in the product data sheet
• Any other improper handling of the material/goods
11.4 Seller shall in no event be liable for any indirect damage or loss suffered by the Buyer, including loss of production, profit, loss due to market fluctuations or any other operational loss irrespective of whether Seller may be held responsible for such loss.
11.5 Seller’s defects liability period expires 12 months after the date of delivery.
11.6 Seller is not liable for any defects resulting from transportation, storage, faulty treatment and the general negligence of third parties.
12. Product liability
12.1 Seller is solely liable for damage caused by defective goods in accordance with the provisions of the Danish product liability act and the unwritten rules of product liability.
12.2 Seller is not liable for any damage resulting from the incorrect or unusual use of the goods. Neither shall product liability apply to damage or injury which can be attributed to fault or neglect by the Buyer. Furthermore, Seller is not liable for damage to immovable and movable property except in the case of gross negligence on the part of Seller.
2.3 If liability accrues subject to the above, it does not include operational loss, loss of time, loss of profits or any other indirect loss. Unless otherwise agreed in writing, property damages are limited to DKK 2,500,000 per incident or series of incidents arising from the same delivery.
12.4 If the Buyer is met by any claim from a third party regarding product liability arising from goods delivered by the Seller, the Buyer shall immediately inform the Seller of such claim and shall in writing on a continuous basis during such matter keep the Seller informed. If the Buyer does not keep the Seller properly informed the Buyer forfeits any claim against the Seller regarding such product liability. The Buyer must hold Seller harmless where third-party liability is imposed on Seller beyond the above-mentioned limitation of liability.
12.5 The Seller and the Buyer are under a mutual obligation to appear as defendants before a court of law hearing a claim for damages resulting from damage allegedly caused by the products.
13. Force majeure
13.1 Neither the Buyer nor Seller as supplier has any influence on unforeseen events. None of the parties, therefore, are liable for the non-performance of the agreement due to circumstances which it was impossible to foresee (force majeure). This applies, however, only to the extent and as long as said circumstances prevent either party from meeting its obligations under this agreement. The below-mentioned circumstances are considered a cause of exemption on the part of Seller and the Buyer if they render the performance of the agreement impossible or unnecessarily onerous: Trade disputes and unforeseen events such as fire, war, mobilisation or military call up, application, seizure, amendments to regulations, currency restrictions, revolution or civil unrest, insufficient transportation, general shortage of materials, restrictions on the use of electricity, etc. and the shortage or delay of deliveries from sub-contractors due to any of the above-mentioned circumstances.
14. Governing Law and Venue
14.1 Any dispute in connection with deliveries from Seller must be settled in accordance with Danish law. The Danish international rules on civil law and “United Nations Convention on Contracts of International Sale of Goods” (CISG) do not apply to deliveries from Seller.
14.2 Any dispute arising out of or in connection with these General Terms, including disputes regarding its existence or validity and disputes regarding this arbitration clause and the arbitration procedure, must be decided by arbitration before the Danish Institute of Arbitration. Each party appoints an arbitrator, and the Institute of Arbitration appoints the chairman of the arbitration tribunal. The trial language is Danish or English (Seller to decide). The place of arbitration will be Aarhus, Denmark.
14.3 If a dispute primarily is related to Buyer’s payment (partial or full lack of payment, regardless of reason) Seller may decide to have such disputed decided by the City Court of Aarhus, Denmark.